By Virginia A. Dyer, Associate Levine-Piro Law, PC
On March 27, 2015 the Supreme Court in New York County made a decision that allowed a Wife to serve her Husband via Facebook. Ellanora Arthur Baidoo v. Victor Sena Blood-Dzraku, 2015 NY Slip Op 25096 by Matthew F. Cooper, Justice.
Service of process in New York differs from Massachusetts, however, the end result is the same: that the Defendant be notified that their spouse has filed for divorce. In Massachusetts under Mass.Dom.Rel.P. Rule 4, it is required that the Defendant in a divorce be served in-hand with the Summons, Complaint for Divorce and the Track Assignment Notice. Under the Massachusetts rules the Plaintiff, if attempts to serve the Defendant fail, can petition the court for alternative service such as service through publication. The Motion for Publication is printed in the local newspaper in the area of the Defendant’s last known address. Alternative service can also include serving the Defendant at their place of business rather than at home.
The Plaintiff in Baidoo had to show that it would be impracticable to attempt to serve the Defendant in person; that it was an impossibility, and that substitute service at his abode or business was not possible, as the Plaintiff did not know where the Defendant lived and he claimed not to be working. The Plaintiff’s reasoning was that she had to show that sending the summons through Facebook could reasonably be expected to give the Defendant actual notice of the divorce.
As in Baidoo, it is not uncommon that a Plaintiff would not have the current address of their spouse especially if the parties had been separated for a period of time or if one of the parties had moved. The problem with Service by Publication is that the majority of people do not read the newspaper anymore and especially not the legal notices section where it would be published. Also, it is cost prohibitive. The NY Times charges upwards of $1,000.00 per week for the Notice and like here in Massachusetts, the notice must run for three consecutive weeks. The average person does not have $3,000.00 to use for publication of a Notice that the Defendant is highly unlikely to ever see. Where social media is now more commonplace than regular mail and even e-mail, social media seems a more prudent and efficient way to effectuate service.
Additionally, as long as you can identify that the Facebook page belongs to the person who you believe is your spouse, you can often track how frequently someone accesses their page by their posts. Ms. Baidoo filed an Affidavit that she had contact with her husband through Facebook and was able to identify that it was indeed her husband’s page, that it was a picture of him, and that the exchanges were between her and her husband, and that her exchanges with her husband showed that he regularly logged on to his account. The Wife also had his cell phone number and both she and her attorney could call and speak with him or leave a message or text alerting him that a divorce action had been commenced and that he should check his Facebook account.
Ultimately in Baidoo, the court considered that the Wife and Defendant had never lived together; that the Defendant had vacated the last known address four years earlier; that the Wife did not have an e-mail for the Defendant and had no way of obtaining one; that the Wife did have the Defendant’s phone number and spoke with him on occasion; that Wife hired an investigative firm to assist in locating the Defendant and had been unsuccessful; that the post office had no forwarding address for the Defendant for his prepaid cell phone; that the Department of Motor Vehicles had no record of him, and that she contacted the Defendant by Facebook and he had responded to her messages. In Massachusetts, a Plaintiff does not have to go these extremes to prove that they cannot effect service.
While this case is one of first impression on a state level regarding divorce, there are some federal and state cases that are split on accepting and rejecting service by social media. In cases where service was permitted it was with the caveat that service also be attempted by another method as well. Baidoo dispenses with the additional requirement of two forms of service and allows the judicial system to embrace a new method of service that will actually have a greater chance of giving notice to Defendants. The court granted permission to serve the Defendant with the divorce summons using a private message through Facebook. The court was specific that because litigants are prohibited from serving other litigants, the Wife’s attorney shall log into the Wife’s Facebook account and message the Defendant by first identifying himself, and then including either a web address of the summons or attaching an image of the summons.
This form of service will be more efficient and cost-effective for Plaintiff’s filing suit and will afford Defendants the opportunity to get notice timely and be afforded the opportunity to participate in proceedings.
For more information or to set up a free consultation about Divorce or other Family Law issues, please contact Levine-Piro Law at 978-637-2048 or email office@levinepirolaw.com.
(Citing Article by Rick Couri KRMG – Tulsa, Oklahoma: Judge rules divorce papers can be served via Facebook http://m.whio.com/news/news/national/judge-rules-divorce-papers-can-be-served-facebook/nknfk/)
